The Agreement Is Silent

In all cases over which this agreement remains silent, the DLLCA has control. When commercial parties reach an agreement, their « contractual » obligations are usually defined in a written agreement. However, the parties may also have obligations under ordinary law that are not included in the contractual conditions. These « non-contractual » obligations could arise in respect of both: « The evidence presented to me has shown that each of the parties expressly insists that it does not want to accept the jurisdiction or legislation in force of the other party and that it does not reach an agreement on another jurisdiction or the legislation in force. Consequently, [the agreement in question] does not contain any applicable law clause or any jurisdiction clause. In addition, neither party intended to provide any advantage to the others with regard to the conclusion of the agreement. If their intention was to create darkness and difficulties for lawyers who will be able to debate in the coming years, they have done well. Acceptance usually cannot remain silent. This rule comes from England when a person wrote to a horse dealer that if he had no news of the horse dealer, he thought the horse belonged to him. The English courts did not think that silence could show that there was mutual agreement and therefore decided that a contract existed only if the party receiving an offer had a positive acceptance.

So if an oral agreement — perhaps interrupted by a simple handshake — can be a legally binding treaty, what about silence after an offer? Below we look at the legal nuances of this issue. The general principles in the interpretation of a contract over its duration must be regarded as the explicit provisions of the treaty and the intention of the parties. However, there is no presumption and the fear is that the parties may be bound in the long term, especially when there are no explicit conditions relating to the duration of the contract and when the parties dispute the date on which the contract can be terminated. In examining whether the contract contained a tacit name, the Supreme Court of Appeal (SCA) found that the first assessment was from a construction point of view and that it included an examination of the language used by the parties in the agreement. The SCA found that the contract did not contain an explicit provision on the duration of the contract, but there was also no indication that the parties intended to be bound in the long term. In the next assessment, the intention of the parties will be considered taking into account the nature of the relationship between the parties and the circumstances. The FCC found that the contract required the parties to establish and maintain a close working relationship, with regular behaviour and interaction. The SCA also found that the contract covered a wide range of products and that, as a result, the nature of the relationship could be expected to change over time.

The contract concerned the local distribution authority importing chemicals and the SCA found that a number of factors would affect the profitability and financial viability of the contract. The SCA considered that, given the unpredictable and variable nature of factors such as production and transportation costs, it was unlikely that the parties intended to be bound to the contract in the long term. It is the economic reality of the relationship that the SCA has suggested as an intention of the parties not to remain bound in the long term. Accordingly, the SCA found that it was necessary to include a tacit provision in the agreement, taking into account the circumstances and taking into account the termination of the contract during its term. In the light of practical considerations, the SCA found that it was necessary and economically efficient for the tacit duration to result in the contract being able to be terminated within a reasonable period of time. . . .